Citation Nr: 9921291
Decision Date: 07/30/99 Archive Date: 08/03/99
DOCKET NO. 96-39 916 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for strabismus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.S. Lane, Associate Counsel
INTRODUCTION
The veteran served on active duty in the Navy from February 1967
to April 1971, with subsequent periods of active duty for
training in the reserves. He also served in the Coast Guard from
August 1984 to November 1993.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from two rating decisions by the St. Petersburg,
Florida Department of Veterans Affairs (VA) Regional Office (RO).
In June 1994, the RO denied the veteran's claim of entitlement to
service connection for strabismus and in July 1995, the RO denied
the veteran's claim of entitlement to service connection for
bilateral hearing loss.
The Board notes that in February 1998, the RO granted the
veteran's claims of entitlement to service connection for
arthritis of the right hand, tinnitus, and the residuals of a
right shoulder injury. As the veteran has not initiated an
appeal regarding the disability ratings or effective dates
assigned, these matters are not now before the Board. Grantham
v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barerra v. Gober,
112 F.3d 1030 (1997).
REMAND
The veteran is claiming entitlement to service connection for
strabismus and bilateral hearing loss, which he contends were
either incurred in or aggravated by his service.
The Board notes that the veteran acknowledges that his strabismus
is a congenital condition, which was first diagnosed at age
twelve, and that congenital or developmental defects are not
diseases or injuries within the meaning of applicable law and
regulations for VA compensation purposes. 38 C.F.R. §§ 3.303
(c), 4.9 (1998); see also Winn v. Brown, 8 Vet. App. 510, 516
(1996). However, the veteran has alleged that his strabismus was
aggravated when he served as a surface radar operator in Vietnam.
VA law allows service connection for a preexisting injury or
disease, where there is an aggravation of that disability during
military service, unless there is a specific finding that the
increase in disability is due to the natural progress of the
disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a)
(1998). See, in particular, VA General Counsel's holding in OGC
Precedent Opinion 82-90 (July 18, 1990) to the effect that
service connection may be granted for diseases (but not defects)
of congenital, developmental or familial origin if the evidence
on the whole establishes that the familial condition was incurred
or aggravated during service within the meaning of VA law and
regulations.
The record shows that prior to entry into the Coast Guard, the
veteran served in the Navy from February 1967 until April 1971.
This service includes a period of active duty in Vietnam.
However, with the exception of dental records, his service
medical records from this period are not currently associated
with the claims folder, and there is no indication that the RO
has previously attempted to obtain these records. As the veteran
has alleged that his congenital condition, strabismus, was
aggravated during this period of service, the Board finds it
necessary to obtain and review these records before rendering a
decision on his claim.
With regard to the veteran's claim of entitlement to service
connection for bilateral hearing loss, the Board notes that
service connection for impaired hearing shall only be established
when hearing status as determined by audiometric testing meets
specified pure tone and speech recognition criteria. Audiometric
testing measures threshold hearing levels (in decibels) over a
range of frequencies (in Hertz). Hensley v. Brown,
5 Vet. App. 155, 158 (1993). The determination of whether a
veteran has a disability based on hearing loss is governed by
38 C.F.R. § 3.385 (1998). For the purposes of applying the laws
administered by VA, impaired hearing will be considered to be a
disability when the auditory threshold in any of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater;
or when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels
or greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1998).
The Board notes that there are ample audiometric examinations of
record, conducted by both military and private medical examiners,
which show that the veteran's hearing loss does not meet the
auditory threshold requirements of § 3.385. However, during the
veteran's May 1999 hearing before the undersigned, he submitted a
recent audiometric examination conducted at a VA outpatient
clinic which shows a pure tone average of 58 in the right ear and
48 in the left ear for the frequencies of 500, 1000, and 2000
hertz. The May 1999 VA examiner's report does not in any way
reconcile these findings from the veteran's previous results.
Due to the apparent inconsistency between this most recent
audiometric examination and the numerous examinations conducted
throughout the last several years, the Board finds that a further
VA audiological examination is necessary in order to determine
whether the veteran has a current hearing loss disability as
defined by 38 C.F.R. § 3.385.
Accordingly, this case is REMANDED to the RO for the following
action:
1. The RO should attempt to secure the
veteran's service medical records for the
period of February 1967 through April 1971.
Any correspondence sent or received by the
RO regarding these attempts should be
incorporated into the record. If for any
reason these records are found to be
unavailable, this should be noted and
explained in the file.
2. The veteran should be afforded a VA
audiological examination to determine the
current severity of his bilateral hearing
loss. The claims folder should be made
available to the examiner for review before
the examination. The examiner is requested
to review the previous audiometric tests of
record and, if possible, attempt to
reconcile the veteran's most recent
audiometric score with the previous
audiometric scores of record.
Additionally, the examiner should note any
impact that the veteran's tinnitus may have
on his audiometric testing. The rationale
underlying any conclusions should be
explained and the report of the examination
should be associated with the veteran's
claims folder.
3. Following completion of the foregoing,
the RO should review the claims folder and
ensure that all development actions have
been completed in full. Then the RO should
readjudicate the claims of entitlement to
service connection for bilateral hearing
loss and strabismus, with consideration
given to all of the evidence of record,
including any evidence submitted by the
veteran and/or his representative and any
additional evidence obtained by the RO
pursuant to this remand. If the benefit
sought on appeal remains denied, the
veteran and his representative should be
furnished with copies of a supplemental
statement of the case and given an
opportunity to respond. Thereafter, the
case should be returned to the Board, if in
order.
The Board intimates no opinion as to the ultimate outcome of this
case. The veteran need take no action unless otherwise notified.
While this case is in remand status, the veteran and his
representative are free to submit additional evidence and
argument on the question at issue. See Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
The Board notes that the Court has stated that compliance by the
RO with the Board's remand instructions is neither optional nor
discretionary. A claimant is entitled to complete compliance
with the Board's instructions. Where the remand orders of the
Board are not complied with, the Board errs as a matter of law
when it fails to ensure compliance, and a further remand of the
case will be mandated. See Stegall v. West, 11 Vet. App. 268
(1998).
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
Supp. 1999) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to
provide expeditious handling of all cases that have been remanded
by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45
and 38.02-38.03.
Barry F. Bohan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a decision
of the Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is in
the nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (1998).